[1993] UGSC 56

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

## AT MENGO

$J. S. G.)$ (COR:M: S. W. W. WAMBUZI. C. J., J. B. ODOKI. J. S. C., H. G. PLATT.

# CRIMINAL APPEAL NO. 28 OF 1991

#### **BETWEEN**

BRIAN MUBIRU CUWEDDEKO::::::::::::::::::::::::::::::::::

#### AND

**UGANDA**

### **:::::::::::::::::::::::::::::::::** DEFENDANT.

(appeal against the decision of the High Court at Kampala (Hon. Justice C. Byamugisha)<br>given at Kampala on the 3rd day<br>of September, 1991 in H. C. C.<br>Session Case No. 104/91)

## JUDGEMENT OF THE COURT

The Appellant was Indicated for aggravated robbery contrary to Section 272 and 273(2) of the Penal Code but was on the 3rd day of September, 1991 convicted by the High Court of simple robbery contrary to Sections 272 and 273(1) of the Penal Code. He was sentenced to eight years imprisonment to receive twelve strokes of the cane, to undergo police supervision for five years and to pay compensation of 300,000/= to the Ministry of Health.

The Appellant has appealed to this court against the conviction. He has not appealed against the sentence.

The brief facts of this case are that Dr. Okware, a Deputy Director of Medical Services at Entebbe left his house in Mabua road Kololo in Kampala District on the 29th of May, 1990 at around 8.00 a.m. driving a Toyota Land Cruiser Station Wagon. white in colour registration No. UM 1135. At his own gate as he left, two men brandishing pistols stopped him and forced him out of the vehicle and drove off.

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the Central Police Station and He reported the matter to the Central roxice ouuuion and sign^ were sent out to various police stations in the country giving a description of the stolen vehicle.

Post, He left the vehicle Although On 31st May, 1990, two days later the Appellant driving a Toyota Land Cruiser number UPJ 366 stopped at Mutukula Customs Although he said he was going to Tanzania on business, he had no passport nor temporary movement pass and failed to give proper answers to questions, was shivering. and attempted to walk to Tanzania but was arrested. there was a brand new log book in respect, of the vehicle It was apparently first registered in 1983 and had no licence window sticker. News had been received of a stolen vehicle answering the description of the vehicle driven by the Appellant, and the suspecion of the police had been aroused.

The The vehicle UPJ 366 was ultimately identified by an official from the Ministry of Health, Justine Kaloro. (PW6), as vehicle number UM 1135 which had been assigned to Dr, Okware from the chassis and engine numbers in the log book which he held, vehicle was subsequently handed back to the Ministry.

that it was a deadly weopon. The trial Judge in effect upheld in part a submission of no case to answer at the close of the prosecution case, quite rightly in our view, the allegation that a deadly weapon, threaten the victim of the robbery, none of the alleged pistols had been exhibited in evidence and there was no evidence of test firing any of the pistols to show The Appellant, however, had a case to answer on the minor charge of simple robbery of which was convicted. She held, that there was no evidence to support, a pistol, had been used to There was no firing and

The five grounds of appeal raised mainly three points. Firstly, thvit. the evidence was insufficient to sustain the conviction even of simple robbery. Secondly, that the trial Judge shifted the burden of proof from the prosecution to the defence in her directions to the assessors; and thirdly, that the summing up to the assessors was biased in favour of the prosecution.

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in the sense, that, vehicle lost by Dr. Okware. circumstantial evidence did not conclusively prove that, the Appellant had been found in possession of stolen property. 1990, the vehicle found in the Appellant's possession on 31st May, 1990 was not proved by evidence of identification to have been the Apart from direct evidence, the These arguments attacked the finding that Dr. Okware had had the vehicle robbed from him on 29th May,

learned Counsel for the Appellant, supported for the vehicle. so log book. vehicle• normal and usual practice. out in this case has not been explained. by the Appellant should have been produced by the police witnesses and the number in that log book compared with the numbers of the At any rate the log book referred to by Mr. Kaloro (PW6)should have been produced together with the vehicle that the engine number and chassis number of the vehicle could be demonstrated as corresponding with the numbers in the Similarly the log, book given to the police at Mutukula Mr. Mbabazi, these submissions by stating that to prove the identity of the vehicle the Registrar of vehicles should have been called to demonstrate which of the two log books was the correct- log book We agree with Mr. Mbabazi that that should have been done, if that can be conveniently arranged. This is indeed the Why this practice was not carried

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What has happened is that as the concerned. **We** is that the if that is the best evidence\* been explained\* If. the best, evidence rule is net relied on, the Court may well abdicate its responsibility to judge the yet sometimes make mistakes\* would like to umphasiS' Court should be provided with, It is in our experience that witnesses who appear to be reliable, and ought to be reliable, possible, the original log books and the vehicle to be produced for comparison by the Court itself\* It appears that these exhibits should have been forthcoming; if they were- not that should have and should demand, In this case that rule would require identification of the vehicle itself, in favour of witnesses, whom the Court has the duty to declare reliable or unreliable. the Court simply relied on the wor Phillips, that in their opinion the numbers case may be, to of Mr. Kaloro and Sgt. on the vehicle were similar or dissimilar, the numbers in the log books with which they were that. the rule of evidence

Which was right? As an indication of something not quite right in this case\* Sgt\* Phillips noted that the engine number on the vehicle at Mutukula "had been tampured with. , how a first registration in 1988 could appear on a brand new log book. Mr\* Kaloro, however, There had been some rubbings". remarked that the chassis and engine numbers "appeared not to have been tampered with" If the vehicle had been tampered with that would have enhanced the prosecution case, and was surely a matter which the learned Judge should have investigated. Secondly, would it not have been wise to have called for an explanation from the Registrar of motor vehicles

If the suggestion is correct that the log book MAR Windefine false, that would also clarify the issues before the Court.

We have given anxious thought to the submissions of defence Counsel. We note that theft can be proved by circumstantial evidence. (See Archbold Pleading Evidence & Practice in Criminal Cases 1992 Vol. 2329 and the cases collected there, as well as in the earlier edition). The circumstinuitle vidence was that the Appellant was intercepted at Mutukula on 31st May, 1990 in a toyota land cruiser white in colour similar to the vehicle lost by Dr. Okware two days earlier, while the Appellant was attempting to drive the vehicle across the border into Tanzania. Although the Appeallant said he was going to a different country, Tanzania, on business, he had neither passport nor temporary permit apparently required for leaving the country at the time. The vehicle did not carry a road licence sticker required to be displayed by all private vehicles as opposed to Government vehicles which carry none. The engine number of the vehicle did not tally with the number given in the log book produced by the Appellant and which indicated the vehicle was registered in 1988. The bolts used to fix the number plates UPJ 366 and indeed the numbers themselves were not original, and the Appellant had attempted to abandon the vehicle and cross over to Tanzania on foot. All these matters were accepted by the learned Judge and the assessors in preference to the Appellant's defence that he had the necessary movement papers. But he did not mention the passport. There is no reason why this prosecution evidence should not have been accepted by the trial Judge and the assessors.

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In the event the learned Judge from evidence together we are assured that the shows that the evidence of Mr. Khloro While it would Taking all the circumstantial evidence aad Sgt,. Phillips nay be accepted if believed, not be right to rely on Mr. Kaloro's evidence alone, or indeed that of Sgt. Phillips alone, in this case all the evidence together would bo acceptable, and the assessors did in fact, accept all this evidence, which it was found as a fact that the Appellant had been intercepted on 31st May, 1990 at. Mutukula in recent possession of the vehicle robbed from Dr. Okware on 29th May, 1990. In accordance with the doctrine of recent possession, it was then for the Appellant to explain his possession if he wished to do so.

the As regards possession of the stolen vehicle the Appellant's explanation was that he was a Sales Manager of Nalubongoya Holdings Limited, the owners of UPJ 366. He was detailed by his company to proceed to Tanzania on business. On the 29th May, 1990 at about 1.45 p.m. he was shown the car and given the records, registration card, third party insurance and yellow forms to be taken to the Central Police Station to report the missing road licence.

The learned trial Judge considered the evidence before her and rejected the Appellant's story as false-. She did not believe a vehicle would change hands within a few hours of its being stolen from the thieves to the. alleged Company and then to the Appellant and she concluded that the Appellant was, therefore, the thief. On the evidence as a whole we are unable to say that, the learned trial Judge came to the wrong conclusion on this point.

the learned trial Judge In her summing up to the assessors, commented.

"Was it possible for the vehicle to have changed hands from the robbers to the accused's boss and then to the accused himself? - accused could even have called his bosses to support his story".

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We agree this was a misdirection to the assessors putting the onus on the accused to prove his innocence.

In their joint opinion, however, the assessors appeared to have been aware as to who had the burden of proof. They said,

> "Although it is not accused's responsibility to prove his responsibility to prove his<br>innocence, Jimmy Muscke should<br>have come to clear his Sales<br>Manager by proving the authenticity<br>of Nalubongoya Limited and possibly claiming the company's vehicle UPJ 366. Failure by prosecution to prove the<br>existence of Nalubongoya and UPJ 366 is unfortunate but it does not weaken the prosecution case."

Be that as it may in her judgment the learned trial Judge made it clear that the prosecution must prove the ingredients of the offence beyond reasonable doubt. We are accordingly satisfied that no miscarrriage of justice resulted from the misdirection to the assessors.

Lastly, we are unable to find any bias in favour of the respondent in the summing up to the assessors which is the lust point argued by learned Counsel for the Appellant.

In the circumstances we are satisfied that the appeal must fail and it is accordingly dismissed.

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as remarked earlier in this judgment there has been no appeal against sentence but we observe that the appellant was ordered to pay compensation of 300,000/- to the Ministry of Health. Apparently neither the prosecution nor the defence alluded to the issue of compensation at the time of sentence. In so far as is relevant Section 273(3) of the Penal Code provides,

> " .....where a person is convicted of the folony of robbery, the court shall, unless the offender is sentenced to death, order the person convicted to pay such sum by wey of compensation to any $\frac{1}{2}$ person to the prejudice of whom<br>the robbery was committed, as in the opinion of the court is just having regard to the injury or loss suffered by such person,... **........."**

Although the matter has not been raised we are of the view that there must be some evidence of the injury or loss suffered to enable the court assess the sum payable. We do not think that the order for compensation is arbitrary. In this case the vehicle was recovered and it may well be that the compensation was in respect of such damage as was done to the vehicle related to the robbery. If this is correct the court should have said so.

Dated at Mengo this 27th day of May, 1993.

Sgd:

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL. $.........$ .......... B. F. H. BABIGUMIRA REGISTRAR OF THE SUPREME COURT $S$ _• $M$ _g:2 $H$ _s:2 $I$ _s:2 CHIEF JUSTICE

J. B. SICKI JUSTICE OF THE SUPREME COURT H. G. PLATT JUSTICE OF THE SUPREME COURT